President Biden has announced his intention to nominate an African American woman for the Senate to advise and consent for service on the United States Supreme Court. At the risk of being embroiled in a Whoopi Goldberg “Jewish is not a race issue type of discussion”, I suggest neither race nor gender is the issue for whomever is nominated. Politics is always what membership on the Supreme Court is about.
From the highly political John Marshall (years on Court 1801-1835) to the highly political Ruth Bader Ginsberg (years on Court 1998-2020) the justices of the U.S. Supreme Court have often worn their politics on the sleeves of their robes. Marshall was nominated by President John Adams. Ginsberg was nominated by President Bill Clinton. Americans who agreed with Adams’ political positions generally agreed with Marshall’s decisions and those who leaned in Clinton’s policy directions championed Ginsberg’s. We should not be surprised if a president nominates someone whose political tendencies match the president’s. It is not a justice’s race or gender that matters; it is their philosophies.
Sometimes when a president, liberal or conservative, chooses a justice, that justice turns out on the opposite end from the president’s philosophy. President Eisenhower, a conservative, chose Earl Warren (years on Court 1953-1969) who led a liberal revolution from his position as Chief Justice. And President George H.W. Bush nominated the African American Clarence Thomas to the Bench; Black Clarence Thomas may be to the right of former slave owner Roger Brooke Taney (years on Court 1836-1864) who decided the Dred Scott case. Although it is not likely Thomas would have agreed with that particular decision.
Supreme Court justices are just like the rest of us. We carry our beliefs and prejudices throughout our lives. They change from time to time and sometimes we can overcome them. But the U.S. Supreme Court is just another political branch of our three-branch political democracy. Politicians are placed on the Court by politicians that we elect. As Plato might have said, “Only the naïve believe otherwise.”
Instead of our long-time national self-delusion that the Supreme Court is not a political force, we should acknowledge that the justices are just humans and accept reality. The best we can hope for is term limits instead of a life-time appointment. I suggest one ten-year term would be about right.